1 Case :-cv-00 Document Filed 0/0/ Page of JOHN W. BERRY (N.Y. Bar No. ) LESLIE A. HAKALA (Cal. Bar. No. ) Attorneys for Plaintiff Securities and Exchange Commission Michele Wein Layne, Regional Director Lorraine Echavarria, Associate Regional Director John W. Berry, Regional Trial Counsel 0 Wilshire Boulevard, th Floor Los Angeles, California 00 Telephone: () - Facsimile: () -0 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 0 SECURITIES AND EXCHANGE COMMISSION, Plaintiff, vs. BANC DE BINARY LTD, Defendant. Case No.: COMPLAINT Plaintiff Securities and Exchange Commission ( SEC ) alleges as follows: JURISDICTION AND VENUE. This Court has jurisdiction over this action pursuant to Sections 0(b), 0(d)(), and (a) of the Securities Act, U.S.C. t(b), t(d)(), & v(a), and Sections (d)(), (d)()(a), (e), and of the Exchange Act, U.S.C. u(d)(), u(d)()(a), u(e), & aa. Defendant has, directly or indirectly, made use of the means or instrumentalities of
2 Case :-cv-00 Document Filed 0/0/ Page of 0 interstate commerce, of the mails, or of the facilities of a national securities exchange, in connection with the transactions, acts, practices, and courses of business alleged in this complaint.. Venue is proper in this district pursuant to Section (a) of the Securities Act, U.S.C. v(a), and Section of the Exchange Act, U.S.C. aa, because certain of the transactions, acts, practices, and courses of conduct constituting violations of the federal securities laws occurred within this district. SUMMARY. This matter involves an unregistered offering of securities by Banc de Binary Ltd. ( Banc de Binary ), a Cypriot and Israeli company which operates an online binary options trading platform. On Banc de Binary s website, Banc de Binary offers and sells binary options securities that provide a payout contingent upon the price movement of an underlying asset, including stock and stock indices.. The binary options offered by Banc de Binary are securities under the federal securities laws. Banc de Binary offered and sold, and continues to offer and sell, these securities to U.S. investors in unregistered transactions through general solicitations by its representatives over the internet and through phone calls and spam s. In doing so, Banc de Binary has violated, and continues to violate, Sections (a) and (c) of the Securities Act of (the Securities Act ).. Moreover, by trading these binary options on account of U.S. investors, Banc de Binary acted, and continues to act, as a broker-dealer. However, Banc de Binary is not registered with the SEC as a broker-dealer, and thus has violated, and continues to violate, Section (a)() of the Exchange Act of (the Exchange Act ), U.S.C. o(a)().. The SEC seeks preliminary and permanent injunctions against Banc de Binary, as well as an accounting, disgorgement with prejudgment interest and civil penalties. THE DEFENDANT. Banc de Binary is based in the Republic of Cyprus and regulated by the Cyprus Securities and Exchange Commission ( CySEC ). Based on its registration with CySEC, Banc
3 Case :-cv-00 Document Filed 0/0/ Page of 0 de Binary has obtained reciprocal licenses in several other countries in the European Union, including Germany, Spain and the United Kingdom, but not in the United States. From 0 until at least January 0, Banc de Binary maintained a virtual office on Wall Street in New York City, and listed that address on its website and in s from purported Banc de Binary representatives to Banc de Binary customers.. Banc de Binary has never registered with the SEC in any capacity. It also never registered any offering of securities that it has offered or sold. THE ALLEGATIONS A. Banc de Binary s Binary Options. Since 0, Banc de Binary has operated an online trading platform that allows investors to buy what Banc de Binary calls binary options. In general, a binary option is a security whose payout is contingent on the future value of an underlying asset. Banc de Binary s binary options are over-the-counter, cash-settled option contracts. A binary option is binary because there are only two possible outcomes upon expiration, its holder will receive either a pre-determined amount of money or nothing at all, depending on whether the underlying asset increases or decreases in value.. For example, if the current price of the stock of a hypothetical company XYZ, Inc. were $0 per share, an investor could go to Banc de Binary s online trading platform and buy a binary option that will pay some amount if XYZ s stock price goes above $0 per share at some fixed point in the future. If, at expiration of the option, the stock price of XYZ is greater than $0 per share, then the binary option holder receives the payout. On the other hand, if XYZ s stock price is less than $0, then the holder receives nothing.. On Banc de Binary s website, investors can buy binary options whose payouts are contingent on the value of a variety of underlying assets. These underlying assets include stock of companies and broad-based, published stock indices like the S&P 00, as well as commodities and currencies.. Banc de Binary s website portrays the binary options as investments, and refers to the trading of options. It also explains that binary options are regulated by the CySEC.
4 Case :-cv-00 Document Filed 0/0/ Page of 0 Moreover, on its website, Banc de Binary offers the services of brokers who provide up-todate trading signals and advice. B. Banc de Binary s Trading Platforms. According to its website, Banc de Binary provides five different ways to purchase binary options or trading platforms each of which offers different features for creating binary options.. In general, a Banc de Binary customer can purchase a binary option by taking the following steps with these trading platforms. First, the customer selects the underlying asset for example, a stock or stock index. Second, the customer then chooses whether he or she wants a binary option that pays out if the price of the underlying asset will go up (a call option ) or down (a put option ). Third, the customer inputs his or her investment amount (generally between $ and $,000). Finally, the customer selects an expiration period, which could be as little as 0 seconds. Banc de Binary then states the payout amount (e.g., %) for the binary option created by the customer. At that point, the Banc de Binary customer can click a button on the website in order to purchase the binary option. A Banc de Binary customer generally cannot cancel an order once he or she has purchased the option.. The payout is determined at the end of the expiration period of the Banc de Binary option purchased by the investor. If the price of the underlying asset moved in the direction selected by the investor, then the investor receives the pre-determined payout amount set when he or she purchased the binary option; if the price moved in the other direction, then the investor forfeits the purchase price of the binary option.. As an example, an investor could use a Banc de Binary trading platform to buy a binary option that is based on the price of stock of the company, XYZ, Inc. The investor, for instance, could use one of the Banc de Binary trading platforms to invest $,000 to buy a binary option with a % payout if the price of XYZ stock increases within the next five minutes. Five minutes later, if the price of XYZ stock is higher than it was when the binary option was purchased, then $,0 the $,000 originally invested plus the $0 payout is deposited into
5 Case :-cv-00 Document Filed 0/0/ Page of 0 the investor s Banc de Binary account. On the other hand, if XYZ stock decreases in those five minutes, then the investor receives little or nothing.. Although not disclosed on its website, Banc de Binary claims it acts as an introducing broker for binary option trades that are executed by a market maker licensed with the CySEC. Banc de Binary has allowed investors to open online trading accounts with Banc de Binary with as little as $0, which can be charged to the investor s credit card. Banc de Binary has also urged its customers to deposit additional money into their accounts to qualify for purportedly profitable trading signals and trading advice.. To further stimulate deposits and trading activity, Banc de Binary has offered to supplement investor accounts with a trading bonus. For example, an investor who deposited $,000 into his account, might get a 0% trading bonus of $00, allowing him to purchase up to $,00 in binary options at any one time. C. Banc de Binary s Solicitation of U.S.-Based Investors. According to one Banc de Binary representative, Banc de Binary had about 0,000 investors in the fall of 0, and 0% to 0% of those investors were located in the United States. At one point in time, Banc de Binary s website stated the following about an elite concierge service it offered its customers: Our entire staff is located in the United States. We never outsource abroad and your information is secured in our US Based server facilities. 0. In s to customers and on its website, Banc de Binary held itself out as having an office (indeed, at times even a headquarters ) on Wall Street in New York. Banc de Binary s website indicated that it maintained an address on Wall Street and listed a New Yorkbased telephone number. Banc de Binary only recently removed this address (but not the phone number) from its website.. Banc de Binary solicited customers in the United States. In addition to it also maintained websites and It broadly advertised its websites to individuals in the United States through YouTube videos, spam s, and other internet-based advertising. Banc de Binary also solicited potential
6 Case :-cv-00 Document Filed 0/0/ Page of 0 investors in the United States by sending them s, calling them on the telephone, and chatting with them via instant messenger over the Internet.. These solicitation efforts were successful. For example, after reviewing a Banc de Binary YouTube video and Banc de Binary s website, a man residing in Nevada opened a trading account with Banc de Binary in July 0. He deposited $00 into his Banc de Binary account, and the next day, Banc de Binary gave him a $00 trading bonus. In late July and early August 0, he received a series of s from a Banc de Binary representative urging him to deposit more money into his account in order to qualify for a managed account, which provided special trading signals and trading advice. In October 0, he deposited an additional $00 into his Banc de Binary trading account, and Banc de Binary again matched his deposit with a $00 bonus. Between July 0 and December 0, he entered into about 0 binary options transactions using several of Banc de Binary s trading platforms. Among other binary options, he purchased binary options based on stock.. As another example, in late August or early September 0, a California woman received a spam advertising Banc de Binary s binary options trading platform. Shortly thereafter, she opened a trading account with Banc de Binary and promptly funded her account with $,000 from her bank account. A Banc de Binary representative then contacted her and convinced her to deposit another $0 into her trading account. Over the next three months, she invested in binary options using several of Banc de Binary s trading platforms. Among other forms of binary options offered by Banc de Binary, she purchased binary options based on stock.. In mid-january 0, Banc de Binary claimed to have stopped accepting new investors in the United States. However, preexisting U.S. customers are still able to log on to their Banc de Binary accounts, and current U.S. customers are still allowed to purchase binary options from Banc de Binary. In fact, one U.S. Banc de Binary customer not only was able to log in and purchase binary options as recently as May, 0, a Banc de Binary representative sent her trading signals and recommendations that encouraged her to do so.
7 Case :-cv-00 Document Filed 0/0/ Page of 0. Banc de Binary has not attempted to ascertain whether prospective investors in binary options were accredited investors or to limit the sale of binary options to accredited investors.. For example, one Banc de Binary customer had a monthly income of $00 and a net worth of less than $,000. Neither the Banc de Binary representative that spoke to her, nor anyone else at Banc de Binary, asked her whether she was an accredited investor, what her assets were, or what her income was. Similarly, Banc de Binary actively encouraged another investor in Banc de Binary options to deposit additional funds into his Banc de Binary trading account even after he informed the Banc de Binary representative that he was unemployed and had less than $,000 in his checking account. D. No Registration with the SEC. Banc de Binary has offered and sold, and continues to offer and sell, binary options to U.S. customers. However, it has not registered the sale and offer of binary options to U.S. investors with the SEC. No registration statement has ever been filed with the SEC for the offer or sale of any of the binary options sold by Banc de Binary.. Through its online trading platform of binary options, Banc de Binary is engaged in, and regularly participates in, the business of offering, selling and otherwise effecting transactions in securities for the account of others. Banc de Binary has actively solicited U.S. investors through its website; has executed transactions on behalf of U.S. investors; and held funds on behalf of U.S. investors. It also directly received compensation from binary options trading because each time an investor lost on a binary option trade, Banc de Binary kept the purchase price that the investor paid for the option. Moreover, Banc de Binary induced or attempted to induce its investors to buy more binary options by offering substantial bonus deposits into their accounts in exchange for their agreeing to satisfy certain trading volume requirements. This conduct continues today.. As such, Banc de Binary is a broker-dealer as that term is defined in the federal securities laws. However, Banc de Binary is not and has never been registered with the SEC as a broker-dealer.
8 Case :-cv-00 Document Filed 0/0/ Page of 0 FIRST CLAIM FOR RELIEF Unregistered Offer and Sale of Securities (Violations of Section of the Securities Act) 0. The SEC realleges and incorporates by reference paragraphs through above.. The binary options that Banc de Binary offered and sold to U.S. customers as alleged herein constitute securities as defined by the Securities Act and the Exchange Act.. Banc de Binary, by engaging in the conduct described above, directly or indirectly, singly and in concert with others, made use of the means or instruments of transportation or communication in interstate commerce, or of the mails, to offer to sell or to sell securities, or carried or caused to be carried through the mails or in interstate commerce, by means or instruments of transportation, securities for the purpose of sale or for delivery after sale, when no registration statement had been filed or was in effect as to such securities, and when no exemption from registration was applicable.. By engaging in the conduct described above, Banc de Binary violated, and unless restrained and enjoined, is reasonably likely to continue to violate, Sections of the Securities Act, U.S.C. e. SECOND CLAIM FOR RELIEF Unregistered Broker-Dealer (Violation of Section (a) of the Exchange Act). The SEC realleges and incorporates by reference paragraphs through above.. Banc de Binary has, by engaging in the conduct set forth above, made use of the mails and means or instrumentalities of interstate commerce to effect transactions in, and induced and attempted to induce the purchase or sale of, securities (other than exempted securities or commercial paper, bankers' acceptances, or commercial bills) without being registered with the SEC in accordance with Section (b) of the Exchange Act, U.S.C. o(b), and without complying with any exemptions promulgated pursuant to Section (a)(), U.S.C. o(a)().
9 Case :-cv-00 Document Filed 0/0/ Page of 0. By reason of the foregoing, Banc de Binary, directly and indirectly, violated Section (a) of the Exchange Act, U.S.C. o(a), and is likely to commit such violations in the future unless enjoined from doing so. PRAYER FOR RELIEF WHEREFORE, the SEC respectfully requests that the Court: I. Issue findings of fact and conclusions of law that Banc de Binary committed the alleged violations. II. Issue a judgment, in a form consistent with Rule (d) of the Federal Rules of Civil Procedure, permanently enjoining Banc de Binary, and its officers, agents, servants, employees and attorneys, and those persons in active concert or participation with any of them, who receive actual notice of the order by personal service or otherwise, and each of them, from violating Section (a) of the Exchange Act, U.S.C. o(a), and Section of the Securities Act, U.S.C. e. III. Order Banc de Binary to account for and disgorge all ill-gotten gains from its illegal conduct, together with prejudgment interest thereon. IV. Order Banc de Binary to pay civil penalties under Section 0(d) of the Securities Act, U.S.C. t(d), and Section (d)() of the Exchange Act, U.S.C. u(d)(). VI. Retain jurisdiction of this action in accordance with the principles of equity and the Federal Rules of Civil Procedure in order to implement and carry out the terms of all orders and decrees that may be entered, or to entertain any suitable application or motion for additional relief within the jurisdiction of this Court.
10 Case :-cv-00 Document Filed 0/0/ Page of VII. Grant such other and further relief as this Court may determine to be just and necessary. 0 Dated: June, 0 Respectfully submitted, /s/ Leslie A. Hakala John W. Berry Leslie A. Hakala Attorneys for Plaintiff Securities and Exchange Commission